Advocacy

Contracts

Case Study: Agency Contract Bait and Switch

The Summary

We've all glanced over a seemingly benign document an art buyer or client has asked us to sign as a "formality", prior to beginning a project. Let's face it, it's becoming second nature to "agree" to wordy Terms of Use Agreements without reading them (think Facebook, Instagram and Tumblr). In fact many corporations, especially in the tech industry, are inappropriately utilizing the very same language found in their public online Terms of Use Agreement, in their assignment contracts as well. This case study might get you to think twice before placing your name on the dotted line without first reading and understanding what you're being asked to agree to.

I was recently presented with an interesting situation that unfortunately seems to be getting more common as corporations attempt to usurp ever-increasing rights while paying less in licensing fees and shifting all legal risks to the photographer.

An agency's art buyer sprung a last-minute legal document on me that, if put into effect, would have undermined all previously negotiated stipulations and left me relinquishing all rights to my images without compensation. It also required me to never bring a lawsuit against the client - a Fortune 500 global corporation - for any cause including negligence, infringement or defamation.

The Details

An art buyer whose agency represents a Fortune 500 global tech corporation had approached me to shoot several environmental portraits on location throughout the country. The art buyer indicated that they needed to license the images solely for their client's website on an exclusive, unlimited basis in perpetuity.

Production costs, nominal fees and terms were agreed upon and the shoot was set to begin the following week (as the deadline was tight). All that remained was for both of us to formally execute (sign) the contract.

Later that same day, however, the art buyer sent me a form to sign (indicating it was "just a formality") entitled: "Photographer’s License, Release, and Waiver".

Upon reading the first paragraph of the document, I found language that seemed to be pulled directly from the corporation's public online Terms of Use Agreement and was inappropriate for the project I was being assigned. I was surprised to learn that their Waiver actually undermined every stipulation (pertaining to licensing and indemnification) that all parties had agreed to in prior negotiations. The document went on to supplant the agreed licensing with an 'all rights, including sub-licensing, in-perpetuity' clause as follows: "I grant to and its subsidiaries, affiliates, licensees, successors, and assigns an unrestricted, sublicensable, assignable, irrevocable, perpetual, worldwide, royalty-free license to photographs, digital images, taken by me on behalf of (the “Content”).

By signing the agreement I would be handing over all rights to my images to this global corporation allowing it to re-sell licenses for profit without any further compensation to me. More over, the Waiver would have prevented me from approving how my images could be used or altered and from seeking legal remedies against the corporation as a result of any misuse. This was clearly an inappropriate over-reach and well outside of what we had agreed to or was needed for this assignment.

In response to and in consideration for their tight deadline, I sent the art buyer my contract as we had discussed and agreed along with a list of questions regarding the Waiver I was being asked to sign. I did this with the expectation that there typically is a dialog between the photographer and art buyer, especially when the parameters of a project have changed.

Unfortunately, this time things did not go as expected. Within a couple of hours, I received a note from the art buyer indicating that she was seeking another photographer for the project, as the Waiver was "non-negotiable" and she didn't have the time nor the inclination to discuss legal matters further.

There are many take-aways from this story. It instructs us first that it's imperative to read any and all contracts you are being asked to sign. And if you don't understand something in the contract, contact an attorney (APA has a great one). Be honest, straightforward and respectful in your dealings with clients. And if you need to have something clarified or need to ask a question of the person hiring you, do so respectfully and in the spirit of ensuring everyone is on the same page and expectations are managed on all sides.

Even if you do all these things with the best intentions, however, there may be times when, for reasons unknown, there is a lack of reciprocity from the person hiring you, such as in this case study. But remember that if a relationship starts out on the wrong foot and you are not feeling right about how you are being treated, it might be time to walk away as it usually only gets worse.

Now more than ever, it is important for all of us to hold the line on ethics in our industry to ensure our livelihood into the future.

I've provided a PDF of the Waiver I was asked to sign. Please pay special attention to the highlighted language as it is appearing more and more in contracts and should raise a red flag in your negotiations.

Time UK Issues Rights-Grabbing Contract

Towards the end of December last year (2014), Time UK issued an onerous revision to its long-standing contributor contract. It's clear that Time drafted this revised contract with the sole purpose of intimidating its already under-compensated contributors into transferring their copyright directly to Time Inc. under fear of never working for Time again.

If the content of Time's unprecedented rights-grabbing contract weren't enough, their devious methods ensured that photographers had little, if any, time to review the stipulations with legal counsel nor mount any organized resistance prior to the expiration of the arbitrary truncated signing deadline imposed by Time. To make matters worse, Time purposely issued their contract while most recipients were on Christmas holiday and required that the signed / executed contracts be returned solely via regular post.

While many might consider this primarily a UK issue, it must be remembered that there are many US based photographers that contribute to Time UK. And since Time Inc. is a US based global corporation, there is no doubt that their parent office is closely monitoring what happens in their UK division before instituting the very same exploitive policies here in the US.

APA feels it is imperative that all photographers become informed of this issue and keep alert to any contract of this kind that requires forfeiture of copyright. To this end we have posted a PDF of the contract and an open letter issued by BPPA (British Press Photographers Association) in response (below).

APA leadership is currently reviewing the details of the Time UK contract and exploring all potential responses. Please watch this space and contact APA National with any questions and / or comments.

This letter was sent on BPPA letterhead

Hamish Dawson
Publishing Director
Time Inc.(UK) Ltd.

Dear Mr Dawson,

What would make a photographer with well over twenty years experience, a mortgage and a family tell one of his key clients to “get lost” – using language that we couldn’t and wouldn’t want to post on a public facing website?

The answer is your new rights-grabbing contract which includes a not-so-subtle line giving them a choice between signing what appears to be a massively unfair deal or losing any and all chance of supplying you ever again. Sadly, you aren’t the first major publisher and buyer of photography to decide that you want to tear up long-standing agreements which saw you buying licenses to use the photographs whilst the copyright remained with the photographer. Sadly, you probably won’t be the last either.

The reason that the old one was a ‘long-lasting agreement’ was because it was fair – the word ‘equitable’ even comes to mind. The fees paid were OK but the ability to re-sell the work after an initial period of exclusivity made the jobs worth doing. Had you, the publisher, substantially increased the fees payable to the photographers to redress this balance then that sense of fairness may have been saved from what most of those photographers feel will be a sad, painful and untimely death.

Receiving these letters just before Christmas has been causing anger, resentment and pain for a large number of photographers who can be excused for assuming that the calculation within the Time Inc UK management must be that enough existing people with no real option to do otherwise will sign and enough struggling photographers who don’t yet work for you will grasp their opportunity to get more work and keep their heads above water.

Make no mistake, this is not a small adjustment to the terms and conditions under which so many photographers supply work to you. This is moving the goalposts, repainting them and renaming them as ‘scoring portals’.

We would like to give you the opportunity to explain why this is being done. We probably know the obvious answers about maximising shareholder returns and the less obvious ones about protecting the brands but what about the relationship that you had with talented, creative and dedicated suppliers?

Does a rights-grab of this magnitude make it worthwhile destroying relationships that have stood the test of time and that have worked well?

Any explanation that you can provide will be shared with photographers because many of our members are struggling with your decision.